HANCOCK COUNTY — A disagreement may finally be resolved between the owner of a farm near Fortville and the federal government over whether the removal of nine trees more than 20 years ago constituted an illegal wetland conversion.
The U.S. Department of Agriculture determined the late David Boucher had illegally converted wetlands into croplands several years after he removed the trees in the 1990s. After his challenge to that determination sat dormant for a decade, the USDA reaffirmed its decision. Rita Boucher, David Boucher’s widow, went on to exhaust her appeals options with the USDA before filing a lawsuit in the U.S. District Court for the Southern District of Indiana, which sided with the government. Earlier this month, however, the 7th U.S. Court of Appeals reversed that ruling and called the USDA’s treatment of the Bouchers “arbitrary, capricious and an abuse of discretion.”
“The USDA repeatedly failed to follow applicable law and agency standards,” the ruling said. “It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands.”
Michael Cooley, an attorney with Greenfield-based Allen Wellman McNew Harvey who represents Rita Boucher, now of Skidmore, Missouri, told the Daily Reporter that he was “very pleased” for his client in light of the recent decision.
The USDA did not return a request for comment.
The long-running dispute began sometime around 1994, when David Boucher began removing nine trees from two fields on his property near County Roads 950N and 125W to reduce the cover that people were relying on for illegal dumping at the site.
A USDA representative visited the farm in 2002 and reported a potential wetland violation based on the tree removal, court documents state. The Natural Resources Conservation Service, or NRCS, investigated and assumed the site had been a former wetland illegally drained via tile. Some evidence of tile was later found, but it was determined to have been installed before 1985, when the applicable law went on the books regarding converting wetlands.
The government still determined the area was an illegally converted wetland and sent David Boucher a mitigation plan that would have required him to plant 300 trees per acre. David Boucher challenged the decision, and after a meeting with the NRCS, no further communication was received on the matter for nearly a decade, according to the ruling. David Boucher died in 2004.
In 2012, Rita Boucher sought approval from the USDA to remove an old house and barn from the farm property, the ruling continues. That request prompted the USDA to discover it had never completed a final determination on the property. When representatives visited to do that, an abundance of standing water was on the property due to recent significant rainfall and snow melt, according to the ruling. The USDA again determined the fields were converted wetlands.
Rita Boucher lost her appeals to the USDA’s National Appeals Division and agency director review, the ruling recalls.
Eventually, the USDA conceded that the site had not been drained but maintained it was converted wetlands due to the type of vegetation removed and type of soil, despite the Bouchers’ efforts to show that the trees and soil did not meet the criteria of a wetland.
Rita Boucher’s string of losses continued when she sought judicial review from the U.S. District Court for the Southern District of Indiana. Then came the federal appeals court decision, handed down Aug. 8. In that time, three presidential administrations have come and gone, and there have been six secretaries of agriculture.
Cooley said if the USDA does not appeal, he will request that the district court to direct the department to enter a finding that there are no wetlands on the two fields that have been the source of debate since the early 2000s. He can also request attorney fees for Boucher, he said.
Attempts to contact Rita Boucher for comment were unsuccessful.
